Fortnightly - effluent limitation guidelineshttp://www.fortnightly.com/tags/effluent-limitation-guidelines
enRegulatory Gordian Knothttp://www.fortnightly.com/fortnightly/2012/07/regulatory-gordian-knot
<div class="field field-name-field-import-deck field-type-text-long field-label-inline clearfix"><div class="field-label">Deck:&nbsp;</div><div class="field-items"><div class="field-item even"><p>EPA’s new water, waste, and air regulations complicate power plant compliance.</p>
</div></div></div><div class="field field-name-field-import-byline field-type-text-long field-label-inline clearfix"><div class="field-label">Byline:&nbsp;</div><div class="field-items"><div class="field-item even"><p>Miranda Yost</p>
</div></div></div><div class="field field-name-field-import-bio field-type-text-long field-label-inline clearfix"><div class="field-label">Author Bio:&nbsp;</div><div class="field-items"><div class="field-item even"><p><b>Miranda Yost</b> is an attorney in Hunton &amp; Williams LLP’s Richmond office. Her practice focuses on environmental law and regulation.</p>
</div></div></div><div class="field field-name-field-import-volume field-type-node-reference field-label-inline clearfix"><div class="field-label">Magazine Volume:&nbsp;</div><div class="field-items"><div class="field-item even">Fortnightly Magazine - July 2012</div></div></div><div class="field field-name-field-import-image field-type-image field-label-above"><div class="field-label">Image:&nbsp;</div><div class="field-items"><div class="field-item even"><img src="http://www.fortnightly.com/sites/default/files/1207-FEA3-fig1.jpg" width="1002" height="973" alt="" title="Figure 1" /></div><div class="field-item odd"><img src="http://www.fortnightly.com/sites/default/files/1207-FEA3-fig2.jpg" width="2032" height="1203" alt="" title="Figure 2" /></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>As if the constantly evolving requirements of the Clean Air Act and developing waste regulations under the Resource Conservation and Recovery Act aren’t challenging enough for the electric power industry, new requirements under the Clean Water Act will add to the burden. Moreover, some air and waste requirements will complicate compliance with new water rules and vice-versa.</p>
<p>A media-specific approach to environmental regulation and associated power industry compliance efforts might result in failure to address, or even identify, significant cross-media rulemaking implications. Failure to consider the complex, cross-media implications of these rules presents further risks of noncompliance.</p>
<p>Exploring these cross-media implications, with a more detailed focus on two key developing water regulations, reveals the need for an industry-led initiative to navigate these challenges and pursue potential opportunities for streamlining water, air, and waste requirements for electric generating units, such as a single “cluster rule.” Executives and policymakers involved in environmental compliance by electric power plants should look to the future now to minimize risks and maximize efficient resource allocation.</p>
<h4>Changing Water Rules</h4>
<p>By far the most significant Clean Water Act rulemakings for power plants currently underway involve cooling water intake and effluent. The cooling water intake structures rulemaking, known as the CWIS rule, seeks to reduce impacts associated with water entering a power plant for cooling purposes, and the revised effluent limitations guidelines regulate pollutants associated with water leaving a power plant.</p>
<p>Clean Water Act Section 316(b) requires that the location, design, construction and capacity of cooling water intake structures reflect the “best technology available” for minimizing adverse environmental impacts. In April 2011, the Environmental Protection Agency (EPA) proposed regulations intended to reduce impingement mortality and entrainment mortality. Fish and other organisms that are pinned to intake screens are “impinged,” while smaller fish, eggs, and larvae that are swept through the plant with the water are “entrained.” The requirements would be implemented through National Pollutant Discharge Elimination System permits.</p>
<p>Based on its assessment that “modified traveling screens … are a best performing technology,” EPA proposed to limit fish impingement mortality at existing facilities to no more than 12 percent (annual average) and 31 percent (monthly average). To prove compliance with these standards, a facility would have to do biological monitoring—<i>i.e.</i>, sampling to count the total and surviving impinged fish—at least monthly for the life of the facility. Alternatively, EPA offered the option of limiting through-screen velocity to 0.5 feet per second, though it recognizes that not every facility can meet this standard. Reducing the velocity of water through the screen reduces impingement mortality because it allows fish to escape the current. In addition, the proposal would impose the following three impingement requirements: 1) Facilities on marine or tidal waters must use barrier nets or other technology to protect shellfish; 2) All facilities must provide a means for impingeable fish or shellfish to escape the intake system or be returned to the water body; and 3) All active screens must have advanced fish protection and return features—such as modified buckets, guard rails, smooth woven mesh, a low-pressure wash and a fish handling and return system—even if the facility achieves the velocity standard or the impingement mortality standard using some other type of technology.</p>
<p>All the impingement requirements would apply, even if the facility has closed-cycle cooling—which EPA agrees is itself a best performing technology for reducing impingement, albeit not one that’s available for all facilities.</p>
<p>For entrainment, EPA proposed to require existing units that don’t have “closed-cycle recirculating cooling systems” to achieve the maximum reduction warranted after a site-specific assessment of nine factors listed in the proposed rule, including the number and types of organisms entrained, entrainment impacts on the waterbody, and thermal discharge impacts. The CWIS rule would require facilities with actual intake flows greater than 125 million gallons daily to provide more extensive information on the same nine factors, from which permit writers would then determine what further technology, if any, is warranted for entrainment.</p>
<p>While closed-cycle cooling isn’t expressly required by the CWIS rule for existing units and facilities, the current regulation proposal in many cases could require conversion to closed-cycle cooling technology to comply with entrainment mortality standards, as determined on a site-specific basis. For example, EPA used an assumption that all facilities would be subject to closed-cycle cooling for entrainment mortality reductions in its “worst case” economic impacts analysis. Moreover, for “new units” at existing facilities, the rule requires intake flow commensurate with closed-cycle cooling and imposes different application and monitoring requirements and compliance deadlines. This likely will result, most often, in closed-cycle cooling technology for new units.</p>
<p>Since the CWIS rule was proposed, on June 11 EPA published a Notice of Data Availability relating to 316(b) Impingement Mortality Control Requirements (IM NODA), as well as a NODA relating to EPA’s Stated Preference Survey (SPS NODA) on June 12. The SPS NODA requests comments on the results of EPA’s Stated Preference Survey to date, and on what role, if any, it should play in EPA’s assessment of the benefits of regulatory options for the final CWIS rule. Of particular significance for compliance planning purposes, the IM NODA requests information on additional regulatory options that EPA is considering, including a site-specific approach for reducing impingement mortality and other options for streamlining permitting or obtaining credit for existing or newly installed impingement control technologies.</p>
<p>Even as EPA considers the cooling water intake structures proposal, and possibly revises it pursuant to the pending notice, the agency also is moving forward with developing revised effluent limitation guidelines for electric power plants.</p>
<p>Effluent limitation guidelines (ELG) for electric power plants are national, technology-based regulations designed to reduce pollutants from electric power plants using fossil or nuclear fuels. In a 2009 study, EPA concluded that the current effluent limitations guidelines for electric power plants, last set in 1982, are insufficient, particularly given changes in technology over the last three decades.</p>
<p>The revised effluent limitations guidelines proposal is expected to address discharges from ash handling; flue gas desulfurization and pollution controls; and other power plant streams.</p>
<p>Pursuant to a settlement agreement, EPA is committed to taking final action on the CWIS rule by July 27, 2012. It will be difficult for EPA to consider additional information received in response to its two recent NODAs between July 11 and 12, when the comments are due, and July 27. Release of the proposed ELG rule is expected in November 2012. Both regulations are expected to affect power plants comply with both air and solid waste laws, in addition to the obvious water compliance implications.</p>
<h4>Action at EPA</h4>
<p>In addition to the two CWA rulemakings described above, EPA has recently promulgated final and proposed rules pursuant to the Clean Air Act (CAA) and RCRA (which governs solid and hazardous wastes) that will impact many of the same facilities.</p>
<p>These recent rulemakings include:</p>
<p>• National emission standards for hazardous air pollutants from coal and oil-fired electric utility steam generating units and new source performance standards for fossil fuel-fired electric generating units (MATS Rule), promulgated in December 2011, which replaces the court-vacated Clean Air Mercury Rule and imposes standards pursuant to CAA 112 to reduce mercury emissions, as well as an array of other toxic pollutants from electric power plants;</p>
<p>• The Cross-State Air Pollution Rule (CSAPR), a final rule limiting interstate transport of nitrogen oxides and sulfur dioxide, intended to replace EPA’s 2005 Clean Air Interstate Rule (CAIR) pursuant to 2008 court order and limit emissions through federal implementation plans that regulate electric power plants in 27 Eastern states. Although CSAPR was judicially stayed on Dec. 30, 2011, EPA continues to pursue regulation of interstate transport of such pollutants through a series of regulatory actions;</p>
<p>• Multiple national ambient air quality standards (NAAQS) revisions recently implemented or currently being pursued by EPA with the potential to impact electric power plants, such as: proposed primary and secondary standards for ozone,final nitrogen dioxide primary standards,final primary standards for sulfur dioxide,and final secondary standards for nitrogen oxides and sulfur dioxide;</p>
<p>• A series of EPA findings and regulatory efforts relating to greenhouse gases (GHGs) at electric power plants, among other sources, triggered by the 2007 <i>Massachusetts v. EPA</i> decision that resulted in the conclusion that GHGs may qualify as “air pollutants” under the CAA. These include a 2009 finding that six GHGs are “air pollutants,” the 2010 Tailoring Rule—which tailors the applicability criteria for regulation of GHGs pursuant to CAA prevention of significant deterioration and Title V requirements—and a carbon pollution standard for new power plants, proposed in 2012; and</p>
<p>• A proposal to regulate residuals from coal combustion at electric power plants as either as Subtitle D solid wastes or Subtitle C hazardous wastes (CCR rule).</p>
<p>The proposed cooling water intake structures regulation has the potential to result in significant energy penalties from associated closed-cycle cooling technology installations, and thus increased air and waste pollutant impacts.</p>
<p>There are at least three potential energy penalties associated with closed-cycle cooling technology, as compared to the historically employed once-thru technology: 1) lost power output resulting from reduction in steam turbine efficiency due to an increase in cooling water temperature; 2) additional power to operate fans in mechanical draft towers associated with closed-cycle cooling technology and; 3) additional pumping requirements using more power. The first energy penalty is commonly called the “turbine efficiency penalty,” while the latter two energy penalties are often referred to as the “parasitic energy penalty.” EPA concluded in the cooling water intake structures rulemaking that installation of new closed-cycle cooling units results in parasitic energy penalty and that conversion to closed-cycle cooling results in both turbine efficiency and parasitic energy penalties. The parasitic energy penalty associated with dry closed-cycle cooling technology is even higher than for wet closed-cycle cooling.</p>
<p>EPA estimated that as a percentage of national power output, the turbine efficiency penalty for nuclear and non-nuclear power generation would be 2.5 percent and 1.5 percent, respectively. Parasitic energy penalties’ impact on national power output would add to these turbine efficiency penalty amounts.</p>
<p>These energy penalties likely will result in increased combustion of fuel and resulting increases in air emissions and wastes. In turn, this increase in air pollutants and wastes likely will add to the challenges of complying with recent and ongoing regulations, specifically: GHG requirements, CSPAR, revised NAAQS standards, MATS, and the CCR rule. In a particularly significant example of how air and water regulation can work at cross-purposes, while GHG regulation is based on maximizing combustion efficiency, energy penalties resulting from closed-cycle cooling installation in conjunction with the CWIS rule will decrease combustion efficiency.</p>
<p>While it’s particularly challenging at this initial stage of regulatory development to know exactly how the ELG revision might complicate compliance with air or waste regulation moving forward, the ELG revision exemplifies how increased pollutant control of one media can create other media pollution control challenges. EPA initiated the ELG revision rulemaking to address waste discharges from flue gas desulfurization, installed in most cases pursuant to CAA regulatory requirements, as well as ash pond discharges, which are likely to be impacted by the coal combustion residuals rule.</p>
<p>While the framework for and implications of the ELG revision effort remain to be seen, it’s possible that effluent limitations guidelines compliance might become infeasible at numerous plants due to increased air pollutants transfer from the stack to flue gas desulfurization wastewaters, while very stringent air requirements leave little or no room for change in flue gas desulfurization control practices.</p>
<p>As described previously, energy penalties associated with CWIS compliance likely will make compliance with various air and waste requirements, particularly GHG-related requirements and the CCR rule, more challenging. In turn, maximizing combustion efficiency to comply with GHG requirements or restricted CCR management options could limit power plants’ ability to compensate for energy penalties from closed-cycle cooling.</p>
<p>Additionally, MATS, CSAPR, and revised NAAQS likely will require increased use of air pollution controls, resulting in additional parasitic load source wastewaters and wastes. Based on an EPA study, wastewaters and solids associated with one air pollution control method—flue gas desulfurization—might contain pollutants such as arsenic, mercury, selenium and other wastes. EPA also concluded in the same study that while another air pollution control technology—selective catalytic reduction—doesn’t produce a waste stream, “it can affect the characteristics of fly ash transport water, air heater wash water, and flue gas desulfurization wastewater,” and identified wastewater from the regeneration of selective catalytic reduction catalysts “as potential new waste streams that warrant attention.”</p>
<p>By analogy, the National Emission Standards for Hazardous Air Pollutants for industrial and commercial boilers (or “Boiler MACT”), finalized in March of 2011, is expected, based on EPA estimates, to result in more than 266 million gallons per year of wastewater for existing and new sources. Other associated water implications include an estimated increase in water usage of 700 million gallons per year resulting from installation of wet scrubbers to meet hydrochloric acid requirements.</p>
<p>Similarly, EPA explains in the CCR rule preamble that coal combustion residuals include the air pollutant fly ash, which is “a product of burning finely ground coal in a boiler to produce electricity … removed from the plant exhaust gases primarily by electrostatic precipitators or baghouses.” Moreover, changes to fly ash and other coal combustion residuals are expected to occur as a result of increased use and application of flue gas desulfurization and selective catalytic reduction technology, as well as activated carbon injection, in response to recent impending rulemakings. These changes might eliminate beneficial use options for coal combustion residuals, which could in turn increase the amount of solids subject to the CCR rule.</p>
<p>Because the ELG revision and CCR rule are intended to address wastewaters and wastes associated with air pollution control, among other sources, respectively, an increase in such air pollution controls likely will make compliance with the ELG revision and CCR rule more challenging.</p>
<p>In addition to these considerable compliance challenges, the overlapping implications of the current media-specific approach suggest that increased emissions controls won’t eliminate pollutants, but rather will change the resulting form of materials containing such pollutants. It also highlights the importance of proactive decision-making concerning environmental control end goals and resource allocation.</p>
<h4>In EPA’s Crosshairs</h4>
<p>As these overlapping regulations add challenging and conflicting pressures, the need for clear and continuous discussion between EPA and regulated power companies is critical. This type of dialogue is important for coal, as well as non-coal means of electric power production—like natural gas and nuclear—which are at risk of being caught in the crosshairs of some, if not all, of these regulatory initiatives.</p>
<p>EPA has acknowledged the need to consider cross-media implications. For example, in the CWIS rule preamble, the agency even states that it “recognizes that it’s important that each and all of these [overlapping electric power plant regulatory] efforts achieve their intended environmental objectives in a common sense manner that allows the industry to comply with its obligations under these rules as efficiently as possible and to do so by making coordinated investment decisions and to the greatest extent possible, by adopting integrated compliance strategies.” Similar statements can be found in the CSAPR preamble, Executive Order 13563, and recent Office and Management and Budget (OMB) “Memorandum for the Heads of Executive Departments and Agencies on the Cumulative Effects of Regulations” (March 20, 2012). Despite this clear need, however, the public forum has yet to see specific proposals and plans for dealing with the overlapping implications.</p>
<p>The power industry can’t wait for government cross-media regulatory assessment and planning, especially given the agency’s lack of resources. Many electric power plants have seen the writing on the wall, as EPA has lined up this long list of regulatory proceedings focused on the power industry. For example, in testimony before the House Energy and Commerce Committee, Mark A. Bailey, President and CEO of Big Rivers Electric Corp., stated that it will be difficult for his company to comply with all the pending EPA regulations, despite its significant investments in pollution control equipment. A leading concern he identified was the lack of coordination among various regulations proposed by the EPA and the timing of compliance.</p>
<p>Bailey provided a specific example of an unanswered question arising out of ongoing regulatory efforts: “The [CSAPR] and [MATS] may enable electric utilities to utilize some common control technologies to address both rule requirements, but investment in that technology may not be the path chosen dependent on the requirements contained in the [CCR] regulation, which will not be finalized prior to the issuance of the other two rules. The exercise of installing control equipment of coal-fired generating units to comply with the first two rules may have been wasted, if it is later found that another control approach is the best solution to meet the later issued CCR rule.”</p>
<p>The power industry is well poised to further coordinate and develop a framework for systematically assessing the effects of these overlapping regulatory schemes and to better inform related dialogue with EPA moving forward. Initial topics for such assessment and discussion might include:</p>
<p>• Planning initiatives to deal with overlapping regulations—<i>e.g.</i>, the power industry might pursue a complete overhaul of the current media-specific regulatory scheme, seeking instead congressional mandate of a cluster-rule approach like that used in the paper industry, so that water, air and waste impacts associated with electric generating units could be considered and addressed in a single rulemaking;</p>
<p>• Pollution control technology implications of the overlapping regulations, whether final or still developing;</p>
<p>• Timing practicalities of the overlapping regulations;</p>
<p>• Cost and budgeting implications of the overlapping regulations;</p>
<p>• Shared experiences and lessons learned to date and;</p>
<p>• Power supply sufficiency and expected retirements as overlapping regulations develop further.</p>
<p>The next several months will be critical as regulatory deadlines approach, particularly those associated with requirements developed pursuant to the CWA. Recognizing and beginning to plan for cross-media implications are mere first steps. It’s crucial that the power industry act as a unified leader in moving past a media-focused understanding of environmental regulation. If the industry acts now to assess implications and proactively seek opportunities to streamline power plant regulation, companies can minimize risk of noncompliance and maximize efficient allocation of resources contributing to a healthier environment as the various new requirements take effect.</p>
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<div class="field-label">Tags:&nbsp;</div>
<div class="field-items">
<a href="/tags/environmental-regulation">Environmental regulation</a><span class="pur_comma">, </span><a href="/tags/hunton-williams">Hunton &amp; Williams</a><span class="pur_comma">, </span><a href="/tags/clean-air-act">Clean Air Act</a><span class="pur_comma">, </span><a href="/tags/resource-conservation-and-recovery-act">Resource Conservation and Recovery Act</a><span class="pur_comma">, </span><a href="/tags/clean-water-act">Clean Water Act</a><span class="pur_comma">, </span><a href="/tags/cross-media">cross-media</a><span class="pur_comma">, </span><a href="/tags/cooling-water-intake-structure">cooling water intake structure</a><span class="pur_comma">, </span><a href="/tags/cwis">CWIS</a><span class="pur_comma">, </span><a href="/tags/environmental-protection-agency">Environmental Protection Agency</a><span class="pur_comma">, </span><a href="/tags/epa">EPA</a><span class="pur_comma">, </span><a href="/tags/national-pollutant-discharge-elimination-system">National Pollutant Discharge Elimination System</a><span class="pur_comma">, </span><a href="/tags/closed-cycle">closed-cycle</a><span class="pur_comma">, </span><a href="/tags/im-noda">IM NODA</a><span class="pur_comma">, </span><a href="/tags/sps-noda">SPS NODA</a><span class="pur_comma">, </span><a href="/tags/effluent-limitation-guidelines">effluent limitation guidelines</a><span class="pur_comma">, </span><a href="/tags/elg">ELG</a><span class="pur_comma">, </span><a href="/tags/caa">CAA</a><span class="pur_comma">, </span><a href="/tags/rcra">RCRA</a><span class="pur_comma">, </span><a href="/tags/clean-air-mercury-rule">Clean Air Mercury Rule</a><span class="pur_comma">, </span><a href="/tags/cross-state-air-pollution-rule-1">Cross-State Air Pollution Rule</a><span class="pur_comma">, </span><a href="/tags/csapr">CSAPR</a><span class="pur_comma">, </span><a href="/tags/clean-air-interstate-rule">Clean Air Interstate Rule</a><span class="pur_comma">, </span><a href="/tags/cair">CAIR</a><span class="pur_comma">, </span><a href="/tags/national-ambient-air-quality-standard">National Ambient Air Quality Standard</a><span class="pur_comma">, </span><a href="/tags/naaqs">NAAQS</a><span class="pur_comma">, </span><a href="/tags/greenhouse-gases">Greenhouse gases</a><span class="pur_comma">, </span><a href="/tags/ghg">GHG</a><span class="pur_comma">, </span><a href="/tags/bailey">Bailey</a><span class="pur_comma">, </span><a href="/tags/big-rivers-electric-corp">Big Rivers Electric Corp.</a> </div>
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Sun, 01 Jul 2012 04:00:00 +0000puradmin14657 at http://www.fortnightly.com